Furtive or not furtive? That is the question. Good Fourth Amendment decision – Drunk man’s chest-level hand gestures and unresponsiveness to the question “do you have a gun?” did not provide reasonable articulable suspicion that he was armed and dangerous

Robinson v. United States, No. 12-CF-1223

(decided Sept. 26, 2013)

Players:  Beckwith, Easterly, Ferren.  Opinion by Judge Easterly.  Susan E. Borecki for Mr. Robinson.  Motions judge:  Stuart Nash.

Facts:  Officers from the MPD “Gun Recovery Unit” approached Mr. Robinson as he was standing next to a parked car in a parking lot.  It was 8:30 p.m., and Mr. Robinson was quite obviously drunk, holding an empty vodka bottle, unable to stand in one place, and verbally non-responsive.  An officer asked him if he had a gun—“not because he had any suspicion that [Mr. Robinson] did” but because, as a member of the Gun Recovery Unit, he “put this question to everyone he encountered out on patrol.”  Robinson, slip op. at 9, 19.  Mr. Robinson again did not respond; he did, however, bring “both of his hands up to his chest,” where he moved them “back and forth” or “side to side.”  Id. at 7.  The officer testified that this movement, combined with Mr. Robinson’s non-responsiveness, made him think that Mr. Robinson might have a gun.  Officers then bear hugged him, grabbed his wrists, patted him down, and handcuffed him, at which point they found a small gun in the breast pocket of his coat.  Although the officers “ostensibly searched Mr. Robinson for their own protection,” they left the handgun in his pocket so that the crime scene technicians could take a picture of it for trial.  Id. at 8, 23.

Mr. Robinson moved to suppress the gun and his subsequent statements as the fruits of an unlawful “protective patdown” under Terry v. Ohio, 392 U.S. 1 (1968), arguing that the officers lacked reasonable, articulable suspicion that he was armed and dangerous.  Although the motions judge deemed it “a very close case,” he found that Mr. Robinson’s hand gestures, made after the officer asked if he had a gun, were sufficient to give the officers reasonable articulable suspicion that he had a weapon.  Robinson, slip op. at 11.

Issue:  Did the officers have “reasonable, articulable suspicion” that Mr. Robinson was “armed and dangerous” sufficient to justify their “protective patdown” under the Fourth Amendment?

Held:  No.  “Where Mr. Robinson appeared to be intoxicated and the officers had no reason to suspect him of wrongdoing before their interaction, his back-and-forth, side-to-side hand motions, made after he was confronted by four police officers and asked if he had a gun, coupled with his silence and his presence in a high crime area did not give rise to an objective, particularized suspicion that [he] was armed and dangerous.”  Id. at 26.

Of note:

• Mr. Robinson’s hand gestures alone were not inherently suspicious.  The fact that he made them after the officer asked if he had a gun did not make them suspicious either. Nothing about the gestures “signaled a physical admission” or “concealment of a guilty fact,” and the fact that he was obviously impaired suggested that they were simply “the vague or uncontrolled gestures of an intoxicated individual.”  Id. at 20-21.
• The fact that Mr. Robinson did not verbally respond to the question “do you have a gun?” did not give rise to a reasonable suspicion that he was armed, given that (a) citizens have no legal duty to speak to police, and (b) he was clearly intoxicated and hadn’t responded to any of the officers’ questions.  Id. at 21-22
• The fact that the officers left the gun in Mr. Robinson’s pocket “to create better evidence against him in any criminal prosecution” suggests that they had neither an objective nor a subjective basis to feel any concern for their safety.  Id. at 23.
• The fact that Mr. Robinson was standing in a “high crime area” did not give rise to a “particularized, individualized suspicion” that he had a gun.  Id. at 25.

How to use: 

• Robinson is very useful for cases in which the police claim that their reasonable suspicion was based on “furtive gestures.”  The Court rejects the government’s characterization of Mr. Robinson’s gestures as “furtive,” given that they weren’t particularly stealthy.  The Court also doesn’t put much stock in the police officer’s subjective statement that he perceived Mr. Robinson’s movements as furtive, explaining that the officer’s “mission” –looking for guns – may have “clouded his perception of what he saw.”  Id. at 22.  This notion of “mission bias” can be a useful counterweight when police officers claim they perceive your client’s ambiguous / innocuous movements as “suspicious” or “furtive.”
• Robinson is also a good case to cite when your client was arrested in a high crime area  and/or when he does not respond to police questioning, as the court held that neither fact supported a reasonable articulable suspicion that Mr. Robinson had a weapon.  CM